Since its passage in 2013, New York City’s Earned Sick Time Act (“ESTA”) has been amended twice, first in 2014 and again in 2017, when its mandates were expanded and its name was changed to the Earned Safe and Sick Time Act (“ESSTA” or “Act”) (effective on May 5, 2018).[1] In response to the most recent amendments to the Act, the Department of Consumer Affairs Office of Labor Policy and Standards (“OLPS”)[2] has amended some of its rules (“Rules”) to clarify various provisions of ESSTA. The City also issued amended Frequently Asked Questions (“FAQs”) on the Act to reflect changes made by the Rules. The most significant revisions in the amended Rules, which took effect on September 20, 2018, concern an employer’s compliance obligations with respect to ESSTA’s written policy requirement.

As a brief review, ESSTA requires covered employers to provide eligible employees with up to 40 hours of paid time off (“PTO”) each calendar year[3] to use in connection with (i) the employee’s or a family member’s[4] mental or physical illness or injury; (ii) the closure of the employee’s workplace, or the school or care facility attended by the employee’s child, due to a declared public health emergency; or (iii) matters related to a sexual offense, stalking, and human trafficking involving the employee or the employee’s family member, such as obtaining a protective order or securing safe housing (“safe time”). Employees are eligible to accrue PTO at the rate of one hour for every 30 hours worked if they work at least 80 hours (full-time or part-time) in a calendar year within New York City for a covered employer. This includes work by telecommuting from New York City, regardless of where the employer is located.

New Written Sick and Safe Time Policy and Notice Requirements

Under ESSTA, employers must maintain a written sick and safe time policy. The Rules clarify and, in some respects, amend and/or expand the written policy requirements,[5] as follows:

It is no longer sufficient merely to post the policy and other required notices. Employers now must distribute the policy and notices to employees (i) when a new hire commences employment, (ii) if the employee requests a copy, and (iii) within 14 days before a change to the policy becomes effective. This requirement also applies to employees who “perform work off-site or at dispersed job-sites, such as in private homes, building security posts, or on delivery routes.”

As a reminder, covered employers were required to provide covered employees with a new notice of their rights under ESSTA by June 4, 2018 (with the new information relating to safe time), and must distribute the notice to new hires when they commence employment. Employers may use the Notice of Employee Rights created by the New York City Department of Consumer Affairs.

If the notice was not provided earlier this year, the notice should be provided to current employees, along with an updated policy, if changes are necessary in light of the Rules.

Notice may be provided via email to employees.

The following information must be included in the written policy:

Method of Calculation and Carryover: The policy must state whether safe and sick time is accrued throughout the year or frontloaded at the beginning of the year. If accrued, the policy must specify when the accrual starts, the rate of accrual, and the maximum number of hours an employee may accrue in a year. The policy also must state whether sick leave is carried over.

Restrictions on Use: The policy must state any requirement to provide notice to the employer for foreseeable safe and sick time use, which may be no more than seven days prior to the leave. Additionally, the policy must state any requirement for written documentation, which may only be requested after three consecutive days of absence. Finally, the policy must state the minimum increments of use. Employers may set the initial minimum increment at four hours, with 30-minute increments thereafter.

Statement on PTO Policy (where applicable): If an employer provides PTO for use as safe and sick time, or uses another term besides “safe/sick time” or “safe and sick time”[6] to describe leave provided pursuant to ESSTA, the Rules now require that the employer’s policy must state that such leave may be used by an employee for any of the purposes set forth under ESSTA without any condition prohibited by ESSTA. Thus, if an employer uses a PTO policy, or allows employees to use vacation to satisfy ESSTA, the policy now needs to clarify that PTO or vacation can be used for any of the ESSTA purposes and under the same circumstances (e.g., increments of use, notice, and documentation).

Statement on Confidentiality: Adding another new requirement to the policy mandates, the Rules instruct that the policy must include, at a minimum, details of the confidentiality requirements of Section 20-921 of ESSTA, including a statement that information provided to support safe time will not be disclosed without the employee’s permission or unless disclosure is required by law.

“Single Writing” Requirement: The Rules mandate that “every employer shall maintain written safe time and sick time policies in a single writing.” The Rules provide no further explanation of this requirement, but it appears to mean that an employer that, for example, maintains a general sick leave (or PTO) policy and a separate, supplemental ESSTA policy must ensure that both policies are contained in one document, which is distributed to employees as discussed above.

Employers may not use any government-issued notice or other writing to satisfy the requirement that they provide their own written ESSTA policy to employees. The ESSTA notice requirement is separate from the requirement to have a written policy establishing a safe and sick time policy containing the specific provisions applicable to the employer.

Joint Employers

A covered employer under ESSTA includes “any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service” in the private sector. The Rules clarify a number of issues pertaining to joint employers, including the following:

The term “joint employers” is defined as two employers, each of whom exercises “some control over the work or working conditions of an employee or employees.” Employers may be joint employers even “if they are separate and distinct individuals or entities with separate owners, managers, and facilities.” A determination of joint-employer status rests on analyzing the totality of the relationship between the employee and each of the employers.

Generally, joint employers are individually and jointly liable for compliance with all applicable provisions of ESSTA, including satisfying fines and making restitution. However, in discharging their joint obligations, joint employers may decide among themselves how they will allocate responsibility for complying with ESSTA’s requirements.[7]

With respect to determining the number of employees a joint employer has, every employee whom the joint employer “employs for hire or permits to work, whether joint or not,” must be counted. Thus, as the Rules illustrate, “a joint employer who employs three workers from a temporary help firm and also has three permanent employees under its sole control has six employees for purposes of the OLPS laws and rules.”

If two or more joint employers employ an employee, all of the employee’s work for each of the joint employers must be considered as a single employment for purposes of accrual and use of ESSTA time.

Calculating Rates of Pay

The Rules delete provisions about how to calculate payment for safe and sick time when an employee is paid on a piecework basis, and they add a provision on how to calculate payment for safe and sick time when an employee is paid a flat rate.

What New York City Employers Should Do Now

Employers should ensure that their current ESSTA policy and distribution process comply with the new Rules, such as the inclusion of a confidentiality statement and, where applicable, a statement concerning the company’s PTO or other sick leave policy that acknowledges employees’ rights under ESSTA. Further, employers that currently maintain sick leave and ESSTA policies in separate documents should create a single document and distribute that one document as required.

Employers that may be “joint employers” (as defined by the Rules) should make sure that they are complying with their ESSTA obligations with respect to any individual who may be the employee of joint employers.

[2] The OLPS was established by a New York City law passed in 2015. The OLPS is responsible for several New York City employment laws, including ESSTA, the Freelance Isn’t Free Act, the Temporary Schedule Change for Personal Events Law, the Fair Workweek Laws, and the Commuter Benefits Law.

[3] The FAQs state that a “calendar year” is any consecutive 12-month period of time, as selected by the employer. The calendar year will be designated on the ESSTA notice provided to all employees.

[4] According to the FAQs, the definition of “family member” for ESSTA purposes includes a child (including biological, adopted, or foster child; legal ward; or child of an employee standing in loco parentis), spouse, domestic partner, parent, grandparent, grandchild, sibling (including half-sibling, adopted sibling, and step-sibling), any individual whose close association with the employee is the equivalent of family, or any other individual related by blood to the employee.

[5] The Rules clarify that “written” “means a hand-written or machine-printed or printable communication in physical or electronic format, including a communication that is maintained or transmitted electronically, such as a text message.”

[6] Other possible terms include “vacation time,” “personal days,” or “days of rest.”

[7] With regard to temporary employees placed in an organization by a temporary help firm, the Rules state that the temporary help firm is solely responsible for compliance with all of the provisions of ESSTA for those temporary employees, regardless of the number of employees placed or the size of the company where the employees are placed.

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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

Email

First Name

Last Name

Company Name

Company Industry

Title

Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

Operate our Website and Services and publish content;

Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);

Measure readership and usage of the Website and Services;

Communicate with you regarding your questions and requests;

Authenticate users and to provide for the safety and security of our Website and Services;

Conduct research and similar activities to improve our Website and Services; and

Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.

If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.

Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.

Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.

Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.

Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.

To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.

Your Rights

Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.

Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.

Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.

Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

Improve the user experience on our Website and Services;

Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;

Track anonymous site usage; and

Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

"Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).

"Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.

"Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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